Question: Can a prospective employer tell me they will only hire me if I already have health insurance? Can they ask if I smoke, if so, how much a day, and if I suffer any health problems as a result? Can they ask me if I bought my home, how did I get a mortgage, and if I purchased it by cash, from where were those funds derived?

Beth
Terre Haute, Indiana

Answer: Dear Beth:

As you probably know, I am not licensed to practice law in Indiana. However, based on a brief review of Indiana law, and my almost 30 years of experience, I believe the answers to your questions are all “Yes.” Let me explain:

1. Employers cannot refuse to hire people based on certain criteria or categories; all other criteria and categories are permissible. Though the law in different states say slightly different things, in general the law says that an employer cannot refuse to hire people based on their age, gender, religion, race, nationality, disability and a few other categories, such as sexual orientation in certain cities and states. However, it is entirely legal to refuse to hire based on a person’s height, whether a person can use a computer, whether a person has big ears, and thousands of other criteria. Many people believe – mistakenly – that any kind of “discrimination” is illegal. They are wrong; only certain types of discrimination are illegal.

2. For an employer to be held legally accountable for any question(s) asked in an interview, the questions have to be reasonably connected to an impermissible “criteria or category.” So, it can be considered illegal discrimination to ask a prospective employee: (a) if she practices a certain religion; (b) what his racial background is, or (c) if a woman plans to have another child. Such questions give rise to an inference of illegal discrimination. Whether you enjoy reading mystery novels would not seem to be connected to illegal discrimination.

I can’t imagine what might motivate an employer to ask a job applicant questions about mortgages on homes, or the sources of a down payment to purchase a home. I don’t, though, see any connection with such questions and illegal criteria or categories.

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3. Employers are particularly permitted to ask questions that appear to have a “business” reason behind them. Almost everywhere, Courts are increasingly approving of job interview questions that have some bearing on a “business reason” to hire, or not to hire, a prospective employee. Since people who smoke cigarettes – especially a lot of cigarettes – get sick more often than do non-smokers, employers are considered to have a valid business reason to ask questions about those topics. The same might be for those who have health insurance: it might be considered at least rational to believe that such people are more likely to visit doctors and get medicines when they get sick, and thus be out of work less for sick days.

It is true that in many states, laws are being passed to limit the ways that employers can invade employees’ privacy. These do not seem to violate those kinds of new laws.

As I noted above, Beth, it would seem to me that the questions asked of you at your interview, while unusual, are probably not illegal.

Thanks for writing in. Hope this has been helpful.

Best,
Al Sklover

P.S.: Looking for a New Job? We offer a 152-Point Master Checklist of Employment Negotiation Items to help you “remember everything and not forget anything else.” To obtain a copy, just [click here.] Delivered by Email – Instantly!

 

© 2011 Alan L. Sklover, All Rights Reserved.

Question: Can my current employer contact a prospective employer to see if I attended an interview with their company?

 L.R.
         Newnan, Georgia

Answer: L.R., your question has three answers:

1. An employer is free to have communications with any other person or company about any topic they wish, just as you are free to contact any person who is considering coming to work for your employer. It is a free country.

2. However, if your current employer said anything (a) false about you, or (b) that interfered without a “good reason” with your possibly working for that perspective employer, you have every right to either sue them for damages they may have caused you. 

3. However, if your current employer had a “good reason” for contacting the prospective employer – for example, if you had told them you were seeing a doctor that day, and your employer heard you had lied about that, and instead was attending an interview – and they simply asked your prospective employer if you met with them on a certain day, then (a) you cannot sue them for saying anything false because they did not say anything false, and (b) you cannot sue them for interfering because they had a “good reason” for the communication.

Of course, unless you have an employment contract, you are always free to resign if you do not agree with what they did, and they are always free to ask you to leave. That is certain.

Hope this helps. And thanks for writing in. 

  Best, Al Sklover   

 
© 2010 Alan L. Sklover, All Rights Reserved.

Question: I have been told that in my home state (New Jersey) and in other states, too, a prospective employer is only allowed to ask for information about (1) tenure, (2) position held, (3) salary, and nothing else, and that a former employer cannot provide anything else of a personal nature. Is this true?

William
Bradley Beach, NJ

Answer: Sorry, but you’ve been given misinformation, or at least incomplete information. There is a lot of confusion on this point; let me try to clarify this for you.

In general, we live in a country, like many other countries, where we enjoy freedom of speech. Just as you are “generally” free to say anything you like about a former employer, a former employer is “generally” free to say anything about you. Likewise, just as you are “generally” free to ask any questions about a prospective employer, a prospective employer is “generally” free to ask any questions it wants about you.

Put more succinctly, I know of no law that limits what a prospective employer may ask about you, or what a former employer may say about you . . . “generally.” So, you may ask yourself, “What is this ‘generally’ thing he keeps talking about?” I use “generally” because there are things that, if spoken or written, could represent that a violation of law has taken place.

Let’s talk examples: A prospective employer may ask a former employer “Do you know what race he is?” Or, a prospective employer may ask a former employer, “Is it true she is pregnant?” It is not illegal to ask those questions, BUT they surely do suggest (maybe even prove) that the prospective employer may be acting in violation of laws prohibiting employment decisions based upon race and pregnancy. So, many people call those questions “Illegal Questions,” for short, although there is no law that says, “Thou shall not ask if a woman is pregnant.” They indicate a probable violation of law, but they do not necessarily constitute a violation of law.

Surely it is not illegal for a prospective employer to ask a former employer, “Is it true he wears ugly yellow ties?” or a former employer to tell a prospective employer, “We believe she wears the ugliest scarves this side of Milwaukee.” (No offense meant to my Milwaukian friends!) Those are personal comments, but entirely permissible ones; no legal violations there.

Likewise, a former employer might say to a prospective employer, “We want you to know he is an atheist, in fact, that is why we fired him.” Those words would not, in themselves, be a violation of any law, but they sure would indicate that, when they fired the employee for being an atheist, they violated the laws against religious discrimination. Again, the words, themselves, are not “illegal,” but they sure do indicate a violation of law has probably taken place.

And, a former employee can say, “That company puts poison in the food they process.” If he or she is wrong, though, he or she sure can expect a hefty lawsuit.

The message is this: In our society, words are rarely forbidden, but words might well prove that the speaker has violated the law. It’s for this reason that almost all employers have policies to strictly limit (a) what they ask about prospective employees, and (b) what they say about former employees. It’s these policies that limit questions and answers to (i) position, (ii) tenure, and (iii) compensation.

Hope that helps. I hope you’ll tell people nice things about me!! (Just kidding.)

Best,
Al Sklover

© 2009 Alan L. Sklover, All Rights Reserved.

If you would like to obtain a “model” memo to help you request a reference
letter, with three sample reference letters [click here].

Question: I have been with a company for 11 years. I am in the process of interviewing for a new position with another company that is located in another state. My question is, “When the new employer asks for references, do I include my past AND current employer?” I wouldn’t mind my current employer giving a reference, but if I am not selected for the new job position, then I am left in a very awkward situation. Naturally, I have not told my current employer that I am actively searching. This is difficult because I feel a great deal of loyalty to my current employer and would like to be honest and upfront.

Name Withheld
Savannah, Georgia

Answer: Your loyalty is commendable, and your concerns are understandable.

Many people face your exact predicament. The answer is simple: Tell the prospective employer that, if they need to get a reference from your present employer, they can request one ONLY AFTER THEY HAVE MADE AN UNCONDITIONAL, ACCEPTABLE JOB OFFER TO YOU, that is, not conditional on any other item, such as background check, drug screening, etc.

I think you should tell your interviewers that you value your present job, and your relations with your present employer, and you do not want anything to jeopardize your job or your job relations until you have an acceptable job offer “in hand.” I think you should also email that to them, just as a reminder.

Some employers will make your new job offer conditional on a positive reference from your present employer. While that does make you somewhat at risk of a poor job reference from your present employer, you will have to accept – or reject – that conditional offer. That is, if a prospective employer says, “Your job offer has one condition: a positive reference from your present employer,” you are free to say, “No thank you. I do not want to take the risk that I will both lose my present job and not get your job. That is a risk I do not want to take.”

This is entirely proper, business-like and respectful, and is an option open to you. Once you receive a job offer, and find it acceptable in all respects, then you might take the risk of your present employer being “positive” about you. But you don’t have to take that risk.

In all workplace matters, don’t be afraid to raise your concerns, and stand fast to protect your interests. At the same time, there are risks in everything we do, and so long as you understand the risk in a certain course of action, you are free to take that risk, or not take that risk, at your sole discretion. This is what smart workplace navigation and negotiation are all about.

By the way, for this specific, common concern (as we do for so many other concerns), we offer, for a modest fee, a Model Letter Requesting a Prospective Employer Not Contact a Present Employer. To obtain a copy, simply [click here].

Hope that helps. Our best to you in your upcoming transition.

Best, Al Sklover

P.S.: Got a Job Offer, and Background Check is about to happen? Use our Model Letter to Your Former HR, Managers and Colleagues to Discourage Negative References. “What to Say, and How to Say It.”™. To obtain your copy, just [click here.] Delivered by Email – Instantly! 

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© 2009 Alan L. Sklover, All Rights Reserved.

Question: My sister recently joined Facebook to keep in touch with her family and friends. Her employer requires that employees notify them if they join a website like Facebook. When my sister told her employer that she joined Facebook, her employers Compliance Officer told her that she had to list the Compliance Officer as a “friend” on the site so that he could observe and monitor her Facebook activity.

Can an employer do that?

One of our Blog Subscribers
Horseheads, NY

Answer: Great question. As the digital world and the workday world “collide,” we are seeing more and more ramifications of the “collision.” The issues that are arising, and their resolution, are developing over time. The issue you raise is a rather new issue in workday life, and in the legal system, and not many laws or cases have yet appeared.

As a general matter, if an employee is an “at will” employee, an employer can terminate that employee’s employment for any lawful reason. So long as no law forbids a practice – such as firing someone for their religious practices, or because they refuse to date a boss – termination for a non-prohibited reason is permissible. For this reason, an employer can set whatever “conditions of continued employment” it desires, so long as they are not prohibited.

Some states, like New York, have passed laws that prohibit firing an employee on the basis of his or her “recreational” activities.” Is Facebook such a “recreational” activity, and thus protected? My research indicates that this issue has not come to the New York courts, or any other courts. Until it does, and is decided, we can’t be sure.

However, from the court cases that have been reported, two trends can be seen: First, the permissible “recreational activities” the Courts have protected have been quite limited. They are things like inter-racial dating, participation in study groups, and participation in advocacy organizations, such as anti-abortion rallies. Second, and most importantly, when “recreational activities” could harm an employer’s business – such as when a Website includes company secrets, or disparages the company – Courts have not protected them. Said a bit differently, if there is a rational connection between the “recreational activity” and the employer’s interests, then prohibitions have generally been permitted by Courts.

Let’s take smoking cigarettes at home. Is this a “recreational activity” that is protected? Some companies have declared that they will fire any employee who smokes cigarettes, even at home, and base their doing so on the fact that their employee group-health insurance premiums are lower because all of their employees are non-smokers – both on and off the job. This practice has been criticized as too intrusive on a person’s life. However, the rational connection between smoking and health insurance costs has been the basis for court decisions upholding this particular “condition to further employment.”

As to monitoring Facebook, it would seem to me that having a “compliance officer” (a person whose job it is to ensure that employees honor rules and regulations) would be a permissible employer practice. But only time will tell if courts see it as I do.

Disappointed? I can understand that. The best thing, though, is to imagine yourself being an employer whose business was sued for $100 million for some errant comment on a Facebook page. Ouch! Bet if that was your business, you would then understand the wisdom of doing your best to ensure that didn’t happen again. No?

The key to so many of our employment issues is understanding each other, and being reasonable in our actions.

Great question. Please keep visiting, and sending in questions.

Best, Al Sklover

P.S.:In your situation, you might want to get a copy of our Model Letter Requesting a Copy of Your HR File. It shows you “What to Say and How to Say It”™ just [click here.] Delivered Instantly By Email to Your Printer.